Employment Law

1. Employment Law OBE 118 Fall 2004 Professor McKinsey

2. Employee vs. Independent Contractor Factors Most of the law we are studying as “employment law” applies when a worker is classified as an “employee” 1) Degree of control and supervision over how and when work is done 2) Same business? 3) Skill and tools of employed person? 4) Length of period of time for work to be performed?

3. Classifications of Employees Employee vs. Independent Contractor

4. Employee vs. Independent Contractor Factors Most of the law we are studying as “employment law” applies when a worker is classified as an “employee” 1) Degree of control and supervision over how and when work is done 2) Same business? 3) Skill and tools of employed person? 4) Length of period of time for work to be performed?

5. Independent Contractors • Relationship mostly governed by contract law and perhaps also agency law, not employment law. • No required unemployment, social security taxes etc. Thus, less costly for employers. But employers loses a degree of control.

6. Classifications of Employees Hourly versus Salary (different compensation rights) Employee vs. Independent Contractor

7. Hourly versus Salaried • Salaried employees are those employees “exempt” from some provisions of the wage-hour laws (such as overtime) • Category of an employee is a complex question, is industry specific and job specific. • The desire of an employer, or the official title or classification given the employee usually has little importance in deciding whether an employee is salaried or hourly

8. Factors that Help Determine Salaried Status • Is employee pay mostly unrelated to amount (hours) of work? • Is employee pay reduced for late arrival? • Is employee pay reduced for missing a significant part of a day? • Is employee pay reduced for missing a day? • Does employee have managerial, executive, or professional tasks and responsibilities? • Does employee have a high degree of independence?

9. Classifications of Employees Hourly versus Salary (different compensation rights) Public versus Private (diff. employment rights) At-Will versus Contract (diff. termination rights) Employee vs. Independent Contractor

10. At-Will versus Contract Employees • An “at-will” employee can be terminated at any time for “any” reason • Even if an employee is called an “at-will” employee, however, there are various things that an employer can do that could create some degree of protection against termination.

11. Classifications of Employees Hourly versus Salary (different compensation rights) Public versus Private (diff. employment rights) At-Will versus Contract (diff. termination rights) Employee vs. Independent Contractor Agency Status (also an agent?)

12. Some Basic Employee Rights • Worker’s Compensation: • Wage-Hour Laws • Salaried versus hourly distinction important here • ERISA (Employee Retirement Income Security Act) • OSHA- • Labor Laws- right to engage in organized labor activities • FMLA- 12 weeks unpaid leave for family matters (6 paid weeks in California as of July 1, 2004)

13. Right to Work? The At-willEmployment versus Wrongful Discharge paradox At-will employees can be fired for “any reason” except: • Public Policy • Implied Contracts • Covenant of Good Faith and Fair Dealing

14. The Right to Unionize • Anti-injunction Act of 1932 • Clayton Act of 1914 • National Labor Relations Act of 1935 Several laws established the right to unionize Other laws have helped • Freedom of speech (1940 Supreme Court Case)